HKSAR v. Lee Sui Wah

CACC 187/2017

[2018] HKCA 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 187 OF 2017

(ON APPEAL FROM DCCC NO 1178 OF 2016)

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Before: Hon Macrae VP in Court

Date of Hearing: 4 May 2018

Date of Judgment: 4 May 2018

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J U D G M E N T

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1.The applicant was charged with one charge of “Causing death by dangerous driving” (Charge 1) and one charge of “Causing grievous bodily harm by dangerous driving” (Charge 2), contrary to sections 36(1) and 36A of the Road Traffic Ordinance, Cap 374 (“the Ordinance”) respectively. He pleaded not guilty to both charges.

2.The applicant was tried before Deputy District Judge Jason Wan (“the judge”) in the District Court, where he was found guilty and subsequently sentenced to a total of 3½ years’ imprisonment.  He was also disqualified from holding a driving licence of all classes of vehicle for 5 years and 2 years respectively on each charge, and ordered to complete a driving improvement course within the last 3 months of the period of disqualification.  The said disqualification periods were ordered not to run until the applicant had completed serving his term of imprisonment.

3.The Court is only concerned with the application for leave to appeal against sentence in the present hearing[1], the complaint being specifically directed against the order that “the said disqualification periods are not to run until the [applicant] has completed serving the term of imprisonment”[2].  No separate complaint is made in relation to the sentence of imprisonment.  The respondent does not object to the leave application on this basis.

The trial

4.The accident happened at about 9:45 pm on 10 June 2016.  The applicant, when driving the public light bus with registration mark LV 7180 (“the Vehicle”), knocked down a couple and their 5-year-old daughter at a pedestrian crossing (“the Crossing”) outside Maritime Square in Tsing Yi, New Territories.  As a result, the father, who was PW1 at trial, was seriously injured (Charge 2), while the mother sadly suffered fatal injuries and was certified dead early the following morning (Charge 1).  Their daughter was also injured.

5.It was not in dispute that:

(a) The applicant was driving the Vehicle along Tsing King Road (“the Road”) with passengers on board at the relevant time.  The speed limit of that section of the Road was 50 km per hour and, according to Dr Tam Yiu Yau, a forensic accident investigation and reconstruction expert, the Vehicle was travelling at 50 km per hour before the applicant braked.

(b) The Vehicle was in sound condition and had no mechanical defects; while the traffic volume was light, the visibility was good, the weather was fine, the road surface was dry and in good condition, and the road lit by street lamps.  The word “SLOW” was marked on the road approximately 80 metres before the Crossing in question.

(c) The Vehicle collided with PW1, his wife and daughter at the Crossing.  PW1 suffered multiple injuries including a back contusion and multiple fractured ribs, a fractured left clavicle (collarbone), a left medial malleolus and a right radial styloid.  An emergency operation was performed on him, resulting in his hospitalization for 7 days.  His wife was certified dead at 6:15 am on 11 June 2016, while his daughter was hospitalized for 6 days with her injuries.

(d) At 10 pm, immediately after the accident upon the arrival of the police, the applicant said to an investigating police officer that, “At that time, I was travelling on the second left lane at the speed of about 40 km per hour.  At that time, I saw 3 people cross the road about 25 metres away.  At that time, I did honk the horn and turn to the left, but still knock(ed) them down”.

The prosecution case

6.PW1 and his wife were both aged 35, and were respectively an engineer and a teacher in the mainland.  At the time, they were visiting Hong Kong.  Having spent the day at Disneyland, they were returning to their hotel when, upon the suggestion of a local resident, they were using the Crossing to reach the pavement outside Maritime Square in order to take a taxi.  The Crossing, which was neither a “zebra” crossing nor a crossing controlled by traffic lights, was divided into two sections by an island.  They reached the island and continued to cross the second section, walking at all times at a normal walking pace.  PW1’s wife was a little ahead, while his daughter was a little behind.  After walking some 3 paces into the road, PW1 looked to his left side and saw a public light bus approaching them at high speed.  He then felt he was hit and lost consciousness.  When he regained consciousness, all three of them were lying on the ground.

7.There was some other evidence from witnesses:

(a) A pedestrian, PW2, who at the time was using the Crossing from the opposite direction with his wife, observed that the Vehicle was approaching at a rather high speed and not slowing down.  Therefore, he took his wife’s hand and hurried up to cross the road onto the island, passing PW1 and his family who were walking at normal pace;

(b) Another pedestrian, PW3, was walking along the Road and suddenly heard a braking sound.  He looked up and saw a public light bus collide with some pedestrians and then continue to travel a short distance before it came to a halt.

(c) PW4, who was in the Vehicle at the time, saw through the front windscreen as it approached the Crossing some pedestrians about 20 metres away.  The Vehicle did not appear to slow down at all and, when they were 5 metres away, PW4 shouted and closed his eyes.  He then heard the sound of a collision and the braking of the Vehicle.

8.Evidence of the remaining three prosecution witnesses, two police officers and a technician who collected the data from the speed display device of the Vehicle, was not disputed.  The latter said he could not be sure of the speed of the Vehicle at the time of the accident.

The defence case

9.The applicant testified that he had obtained his driving licence in 1987 and worked as a public light bus driver since 1992.  He had been driving the route in question for about 5 years.  At the time of accident, he was driving carefully, at about 50 km per hour, and paying attention to the conditions of the road.  He saw that PW1 and his family were waiting to cross the road on the island.  However, PW1’s daughter suddenly emerged unexpectedly from the island, followed by her mother, who was trying to get hold of her daughter.  This occurred when the Vehicle was about 7‑8 metres from the Crossing.  The applicant sounded his horn and applied the brakes but was unable to avoid the collision.  As a result, the three pedestrians were knocked down.

10.He explained during cross-examination that, when he told police officers he “saw PW1 and his family crossing the road when they were 25 metres away”, what he in fact meant was that he saw them waiting on the island when he was 25 metres away.  He said he did not expect them to walk out from the island and that he did tell the police officers that PW1’s daughter had suddenly emerged.  He also said that he had slowed down the Vehicle from 50 to 40 km per hour when he saw pedestrians at the Crossing, and further to 30‑35 km per hour when he saw PW2.

Reasons for verdict

11.The judge found PW1‑4 to be honest and reliable witnesses, and accepted their evidence.  He rejected the applicant’s evidence, in particular because he gave different versions of the Vehicle’s speed and the timing when he first noticed PW1’s family.  He found the following facts proved[3]:

“(1) The [applicant] was all along driving at the speed of 50 km per hour until he applied the brake. He never slowed down when he was approaching the pedestrian crossing;

(2) PW1 and his family were walking in normal walking pace all along before the accident. His daughter did not suddenly walk out of the island and his wife did not rush out to get hold of the daughter;

(3) The [applicant] said he first saw PW1 and his family crossing the road when they were about 25 metres way. According to PW5, the skid mark started only at about 7 metres from the pedestrian crossing. With reference to the Road Users’ Code, the thinking distance for a driver driving at 50 metres per hour should be 12.5 metres. The defendant said he immediately braked after he saw the pedestrians on the road. It means when the defendant first saw PW1 and his family, he was only about 20 metres away from them;

(4) The defendant only noticed PW1 and his family when they were about 20 metres away and only started to apply the brake when the public light bus was about 7 metres from the pedestrian crossing.  By that time, it was too late to avoid the collision.”

12.Based on these findings of fact, the judge found the following acts of the applicant fell far below what should be expected of a competent and careful driver:

(a) Failure to keep a proper lookout of the road conditions – the applicant was approaching a pedestrian crossing near an MTR station in the evening and therefore should reasonably have expected some pedestrians to be using the Crossing; he had a clear and unobstructed view of the Crossing and should, therefore, have been able to stop in time had he really seen them in time.

(b) Driving at an excessive speed – the applicant had been driving at the maximum permissible speed without paying due regard to the road conditions; he should have slowed down when approaching the Crossing, on which at least 5 pedestrians were crossing at the material time.

13.The judge attributed the accident not to a momentary lapse of attention, or a momentary error of judgment, but to the applicant’s reckess and selfish desire to save himself some time.

14.Accordingly, he convicted the applicant on both charges for failing to keep a proper lookout of the road conditions and for driving at an excessive speed in all the circumstances, albeit that he did not exceed the speed limit.

Mitigation

15.The applicant was 55 years of age at the time of sentence and married with three children.  He had worked as a public light bus driver for many years, had only one relevant previous driving conviction for careless driving and one relatively minor and unrelated criminal conviction some 40 years ago.  It was stressed on his behalf that the applicant was very remorseful and the accident was caused by a momentary mis-judgement rather than a deliberate disregard of the safety of pedestrians.

Reasons for sentence

16.The judge stated that the charges were very serious offences.  He referred to the decision of the Court of Appeal of England and Wales in R v Cooksley and Ors[4], which has been approved by the Court of Appeal in Hong Kong in Secretary for Justice v Poon Wing Kay[5], and identified the aggravating factor in the present case, namely, the “conscious decision and deliberate act to drive past the pedestrian crossing at a high speed and without keeping a proper lookout”.  He also referred to two other Court of Appeal cases[6] in Hong Kong, which made clear that dangerous driving causing death at a pedestrian crossing would be a serious aggravating feature.

17.He considered the sentencing scale in Cooksley, and determined that the applicant’s culpability fell between intermediate and higher culpability.  He considered the proper starting points to be 3 years’ and 12 months’ imprisonment on Charges 1 and 2 respectively.  He ordered 6 months’ imprisonment of the sentence on Charge 2 to be served consecutively to the sentence of Charge 1, resulting in a total sentence of 3½ years’ imprisonment.

18.As for the disqualification, the judge ordered the applicant to be disqualified from holding or obtaining a driving licence for all classes of vehicle for 5 years and 2 years for Charges 1 and 2 respectively; and ordered that the periods of disqualification were not to run until the applicant had completed his sentence of imprisonment.  Although the judge did not say whether the disqualification orders were to run concurrently with each other, it is assumed by the parties before me that that is what he intended.  The applicant was also ordered to complete a driving improvement course.

Grounds of appeal

19.Mr H Y Wong, with him Mr Dicky C H Cheung, on behalf of the applicant, takes particular issue with the judge’s order that disqualification should not to run until the applicant has completed his term of imprisonment.  He argues that:

(a) There is no jurisdiction for a judge to order that disqualification periods should not run until sentence has been served (Ground 1);

(b) The judge failed to give reasons for, or to invite counsel to make submissions on, the disqualification order (Ground 2); and

(c) The overall disqualification period imposed as part of the sentence was wrong in principle and manifestly excessive (Ground 3).

20.Mr Wong submits that section 69A(2) of the Ordinance does not apply since the applicant is not a recidivist, his previous traffic convictions, namely, careless driving and failing to comply with traffic signals, not being “relevant scheduled offences”.

21.He further argues that, since a sentence of 3½ years’ imprisonment is already a severe punishment, a 5‑year disqualification period running from the end of the completion of such a term of imprisonment would be manifestly excessive.  Effectively, the applicant at the age of 65, would be prevented from returning to his driving career.

Respondent’s submissions

22.Mr David Chan, on behalf of the respondent, does not oppose the grant of leave to appeal in relation to the imposition of the disqualification order.  He accepts that section 69A(2) of the Ordinance was not applicable to the case of the applicant and, further, that the judge was obliged to invite submissions before any order of disqualification was made.

Consideration

23.I grant leave to appeal on the grounds articulated at paragraph 19 above, all of which appear to be supported by the decision in HKSAR v Wong Mun Ming[7]: see, in particular, the Court’s discussion at paragraphs 29-41.  As I have said, no complaint is made of the applicant’s term of imprisonment, which I do not need specifically to address.

Mr David Chan SADPP (Ag), of the Department of Justice, for the Respondent

Mr H Y Wong and Mr Dicky C H Cheung, assigned by the Bar Free Legal Service Scheme, for the Applicant